Perkins v. Fed. Fruit & Produce Co.

• Decision Date: 14 May 2013
• Docket Number: Civil Case No. 11–cv–00542–JAP–KLM.
• Citation: 945 F.Supp.2d 1225
• Parties: Richard PERKINS, and Richard Miller, Plaintiffs, v. FEDERAL FRUIT & PRODUCE COMPANY, INC., a Colorado corporation, and Michael Martelli, individually, Defendants.
• Court: U.S. District Court — District of Colorado

945 F.Supp.2d 1225

Richard PERKINS, and Richard Miller, Plaintiffs,

v.FEDERAL FRUIT & PRODUCE COMPANY, INC., a Colorado corporation, and Michael Martelli, individually, Defendants.

Civil Case No. 11–cv–00542–JAP–KLM.

United States District Court, D. Colorado.

May 14, 2013.

Donald C. Sisson, Reid Jason Elkus, Scott David McLeod, Elkus Sisson & Rosenstein, P.C., Denver, CO, for Plaintiffs.

Brooke A. Colaizzi, Emily Fontelle Keimig, Sherman & Howard, L.L.C., Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION AND TO VACATE TRIAL AND JUDGMENT AND/OR FOR A NEW TRIAL

JAMES A. PARKER, Senior District Judge.

In DEFENDANTS' MOTION FOR RECONSIDERATION AND TO VACATE TRIAL AND JUDGMENT IN FAVOR OF PERKINS AND MILLER (1) BECAUSE OF IRREGULARITIES; (2) FOR LACK OF JURISDICTION; (3) PURSUANT TO THE COURT'S INHERENT POWERS OR RULE 59 Or. 60, AND/OR FOR A NEW TRIAL PURSUANT TO RULE 59 (Doc. No. 164) (Motion), Defendants Federal Fruit and Produce Company, Inc. (FFP) and Defendant Michael Martelli (Martelli) ask the Court to vacate the Judgment ¹ in favor of Plaintiffs Richard Perkins (Perkins) and Richard Miller (Miller) entered after a jury trial and verdict.² Alternatively, Defendants ask the Court to order a new trial. The Court will grant the Motion in part and will deny the Motion in part.

The Court concludes that even though Perkins produced an additional page of notes from a meeting with his supervisor after discovery closed, the late production of the document was not sufficiently prejudicial to Defendants to enable the Court to set aside the verdict or order a new trial on Perkins' disparate treatment and discriminatory discharge claims against FFP. Perkins' failure to disclose prior to trial that Perkins had been arrested and had been involved in additional legal proceedings was not sufficiently prejudicial to Defendants to grant their requested relief because the evidence would not have been admissible, and the Court will not set aside the verdict or order a new trial on that basis. Perkins' contradictory testimony about the date he began post discharge employment with GT Express affected Perkins' expert's calculation of Perkins net loss of wages and benefits related to Perkins retaliation claims. Thus, the jury's determination of lost wages and benefits was based on speculation. The Court will grant a new trial on damages for lost wages and benefits awarded to Perkins on his retaliation claim against FFP. At trial, Defendants were surprised and unfairly prejudiced by testimony that Perkins prepared an additional Union grievance but the grievance was then misplaced by the Union. This missing grievance was important evidence of Perkins' protected activity supporting his retaliation claim against Martelli. Thus, the Court will grant a new trial on liability and compensatory and punitive damages related to Perkins' retaliation claim against Martelli.

Prior to trial, Miller failed to reveal that he had been convicted for a crime involving fraud. Miller also failed to inform FFP that Miller knew that his CDL was suspended three days after Miller began working for FFP. And, Miller failed to explain his testimony that he had been married for 27 years while at the same time Miller owed child support to his wife. These three areas of evidence would have been admissible primarily to prove that Miller did not suffer emotional distress due to his discharge from FFP. The evidence would also have been admissible to attack Miller's credibility. Because this evidence is of most importance regarding the amount of compensatory and punitive damages that should be awarded for Miller's retaliation claim against FFP, the Court will grant a new trial on damages related to this claim. The Court had earlier determined that a new trial is necessary on the amount of compensatory and punitive damages that should be awarded for Miller's retaliation claim against Martelli. Because evidence other than Miller's testimony strongly supported FFP's and Martelli's liability for retaliation, the Court will not grant a new trial on FFP's and Martelli's liability to Miller for retaliatory discharge.

In a separate MEMORANDUM OPINION AND ORDER, the Court has denied DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO FED. R. CIV. P. 50(b) (Doc. No. 163).

I. Procedural Background

From May 16–25, 2012, a jury trial was held on Perkins' claims for disparate treatment, discriminatory discharge, and retaliation under Title VII and § 1981 against FFP and Martelli and on Miller's retaliation claims under Title VII and § 1981 against FFP and Martelli. The jury returned a verdict in favor of Plaintiffs on all claims and awarded compensatory and punitive damages.³

II. Standard of Review

Rule 59 provides several grounds for a new trial:

New Trial; Altering or Amending a Judgment

(a) In General.

(1) after a jury trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]

...

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of a judgment.

Fed.R.Civ.P. 59(a), (e).

Under Rule 59, a district court may reconsider a ruling when the district court has “misapprehended the facts, a party's position, or the controlling law.” Barber ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228 (10th Cir.2009). “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000).

Under Rule 60(b) a district court may order relief from a judgment based on several grounds:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

... or

(6) any other reason that justifies relief.

...

(c) Timing and Effect of the Motion.

(1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

Fed.R.Civ.P. 60(b)(1)-(6), and (c).

According to Defendants, the entire Judgment is interlocutory because the Court granted a new trial on damages as to Miller's retaliation claim against Martelli. If the Judgment is interlocutory, the Court may, in its discretion, amend the Judgment at any time before the filing of the final judgment without adhering to the standards of Rules 59 and 60. See Raytheon Constructors Inc. v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir.2003). However, the Court may follow the standards of Rules 59 and 60 to determine whether to alter or vacate an interlocutory order and whether to order a new trial. See Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224 n. 2 (10th Cir.2008) (stating, “[t]he District Court's partial summary judgment ruling was not a final judgment. Thus, [plaintiff's] motion for reconsideration is considered an interlocutory motion invoking the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.... In such a case, the district court is not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b).”) (quotations and citations omitted). Hence, the Court will use the standards set forth in Rules 59 and 60, particularly the standards of Rule 60, as a guide to determine whether to set aside all or part of the Judgment.

III. Factual Background ⁴A. Perkins' Employment at FFP.

FFP is a produce distributing company offering same-day delivery of produce to restaurants, grocery stores, military bases, and nursing homes. (Doc. No. 184–2.) FFP's warehouse is a fast-paced working environment that is operated seven days a week. ( Id.) FFP employs a day shift and a night shift of warehouse and trucking employees. ( Id.) In 2010, FFP employed 90 people at its Denver facility and maintained a fleet of approximately 40 trucks. ( Id.)

Perkins began working for FFP on October 3, 2008 as a Class B truck driver. (Tr. 964:14–15.) Perkins was a member of Teamsters Local Union No. 455 (Union). During the period of Perkins' and Miller's employment at FFP, Jesse Medina (Medina) was the Union's business representative at FFP. A Collective Bargaining Agreement (CBA), effective from October 1, 2007 to October 1, 2011, governed the terms and conditions of employment at FFP with respect to its truck drivers. (Tr. 348:22–24; Ex. G.)

Article 13 of the CBA describes FFP's Progressive Discipline Policy:

1st offense—Written “verbal” warning

2nd offense—Written warning

3rd offense—2nd Written warning and suspension

4th offense—Termination.

(Ex. G at 9.) Article 16 of the CBA prohibits discrimination on the basis of race. (Ex. G at 12.) Under the CBA, all employees were to receive a copy of FFP's work rules and were required to sign an agreement to abide by the rules. ( Id. at 8; Ex. O FFP 00861–00863.)

In response to an employee's unsatisfactory job performance, FFP management could issue a “warning notice” according to the CBA's progressive discipline policy. ( Id.) Warning notices, known as write ups, were considered “current” for 15 months after issuance. ( Id. at 9.) When issuing a write up, an FFP supervisor or manager would...